Citation Nr: 0821457
Decision Date: 07/01/08 Archive Date: 07/14/08
DOCKET NO. 05-00 935 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Oakland,
California
THE ISSUE
Entitlement to service connection for bilateral diplopia,
also claimed as hypertropia, strabismus, and exotropia.
REPRESENTATION
Appellant represented by: California Department of
Veterans Affairs
ATTORNEY FOR THE BOARD
Kathy Diener, Associate Counsel
INTRODUCTION
The veteran had active service from October 1954 to July
1956.
This matter comes before the Board of Veteran's Appeals
(Board) on appeal from an October 2002 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Cleveland, Ohio (Tiger Team), which denied the veteran's
claim. The claim is currently before the RO in Oakland,
California.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the
appellant if further action is required.
REMAND
The veteran contends that he was injured in service during a
live-fire exercise in November 1954. He reports that he was
hit by falling debris following an explosion and was treated
for an injury to his right eye. He claims that he began to
experience double vision within a few weeks of this incident.
The RO has been unable to obtain the veteran's complete
service records as they were likely destroyed in a 1973 fire
at the National Personnel Records Center (NPRC). The RO
sought alternate source development of the evidence, and the
veteran assisted in the effort to reconstruct his service
medical records (SMRs) by completing NA Form 13055, Request
for Information Needed to Reconstruct Medical Data. However,
the NPRC has been unable to reconstruct the record. The only
document in the claim file from the veteran's period of
service is a report of his separation physical examination
performed in July 1956, which shows normal visual acuity,
normal findings upon clinical evaluation of the eyes, and no
reference to an in-service injury. Where relevant records
are unavailable because of the NPRC fire, however, the Board
has a heightened duty to assist the veteran in developing the
facts pertinent to the claim. Moore v. Derwinski, 1 Vet.
App. 401, 405 (1991).
In that regard, VA medical records include an August 2006
ophthalmology clinic assessment of "left hypertropia and
exotropia secondary to trauma during combat situation in
1954, most likely a left superior oblique palsy." Although
this assessment is supportive of the veteran's claim, there
is no indication as to whether the VA physician who wrote it,
had the benefit of the veteran's claims file, or whether it
was instead based solely upon the history provided by the
veteran.
It is recognized that VA's duty to assist the claimant while
developing his claims, pursuant to 38 U.S.C.A. § 5103A (West
2002), includes obtaining a medical opinion whenever such an
opinion is necessary to make a decision on the claim. See 38
U.S.C.A. § 5103A(d). 38 C.F.R. § 4.1 (2007) provides further
that "It is...essential both in the examination and in the
evaluation of the disability, that each disability be viewed
in relation to its history.") See also Green v. Derwinski,
1 Vet. App. 121, 124 (1991). ("[F]ulfillment of the
statutory duty to assist . . . includes the conduct of a
thorough and contemporaneous medical examination, one which
takes into account the records of prior medical treatment, so
that the evaluation of the claimed disability will be a fully
informed one."). The Board finds that such an examination is
necessary in this case. McClendon v. Nicholson, 20 Vet. App.
79 (2006).
Accordingly, the case is REMANDED for the following action:
1. Schedule the veteran for a VA
examination for the purpose of
determining the nature and etiology of
his claimed bilateral diplopia, including
whether it bears any relationship to
service. The claims file must be made
available to and pertinent documents
therein reviewed by the examiner in
connection with the examination. Any
further indicated special tests and
studies should be conducted.
The examiner must address the
following medical question for the
disorder at issue:
Is it at least as likely as not (at
least a 50 percent probability) that
any eye disability, if found, is
related by etiology to service on any
basis, including the injury described
by the veteran to have occurred in
service?
A complete rationale for any opinions
expressed should be provided.
2. Review the record and complete any
further development, if necessary.
Thereafter, readjudicate the issue on
appeal. If the claim remains denied,
the RO should issue a supplemental
statement of the case and afford the
veteran an opportunity to respond.
Thereafter, the case should be returned
to the Board for appellate review.
The appellant has the right to submit additional evidence and
argument on the matter the Board has remanded. Kutscherousky
v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007).
_________________________________________________
MICHAEL A. PAPPAS
Acting Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2007).